The TC zoning in effect at the time
of the application allowed some of the requested uses as permitted uses.(1)�
Umatilla County Development Code (UCDC) 152.276(B) listed the uses permitted in
the TC zone as including an "automobile service station,"
"eating or drinking establishment," "food store limited to 2,500
square feet," "gift shop," and "information center."�
UCDC 152.003 defined "automobile service station" as "[a]ny
building, land area or other premises or portion thereof, used or intended to
be used for the retail dispensing or sale of vehicular fuels; and including as
an accessory use the sale and installation of lubricants, tires, batteries and
similar accessories."� Thus, the restaurant, convenience store, and
automobile service station uses were permitted on the property without a
conditional use permit.� The parties concur that the commercial truck fueling
stations, truck service building, and truck wash facility could be included in
the travel plaza only if they were approved as conditional uses under UCDC
152.277(E).

UCDC 152.277 set out the allowed
conditional uses in the TC zoning district, including:

"Other uses similar to the uses permitted
or the conditional uses normally located in a Tourist Commercial Zone,
providing that it has the approval of the Planning Commission."

"The Planning Commission may permit as a conditional
use in a particular zone a use not listed in this chapter, provided the use is
of the same general type as the uses permitted there by this chapter."

The county approved the conditional
use permit requested by respondent under the authority of UCDC 152.277(E).� The
county concluded that each of the desired uses was a permitted or conditional
use allowed in the TC zoning district.� The county determined:

"The multiple uses proposed by the applicant are
similar, if not identical, to the uses that are specifically allowed as
permitted uses in the TC zone under UCDC �152.276(B).� The only proposed uses
that are not expressly listed as permitted uses are the truck service station
and truck wash.� The Board finds that these uses are similar to an automobile
service station, and therefore the entire composite of uses may be approved
under UCDC �152.227(E).� The Board finds that this interpretation of the code
is consistent with long-standing County precedent regarding the application of
the 'similar use' standard."

Petitioners claimed that the
requested nonpermitted uses constituted a "truck stop" under the
development code.� UCDC 152.003 defined "truck stop":

"Any building, premise or land in which or
upon which maintenance, servicing, storage or repair of commercial licensed
trucks or motor vehicles is conducted or rendered, including the dispensing of
motor fuel or other petroleum products directly into the trucks or motor
vehicles, the sale of accessories or equipment for trucks or similar motor vehicles."

The development code specifically allowed a "truck stop
or trucking terminal" as a conditional use in the Commercial Rural Center
(CRC) zoning district.� UCDC 152.262(H).� The CRC zoning district also allowed
the other travel plaza uses requested by respondent.� UCDC 152.261(B)(2) - (4).�

Petitioners argued that the
"truck stop" uses could not be allowed as conditional uses in the TC
zoning district because they were explicitly listed as conditional uses in the
CRC district and therefore implicitly prohibited elsewhere.� Petitioners also
claimed that UCDC 152.009, the general "similar use" provision,
limited the operation of UCDC 152.277(E).� Because UCDC 152.009 allowed uses
"of the same general type" as listed in a zoning district only if the
use was otherwise "not listed in this chapter," and the "truck
stop" uses were listed as conditional uses in the CRC zone, petitioners
asserted that the combination of uses that were a "truck stop" could
not be allowed on TC-zoned land as a conditional use.�

The county rejected petitioners'
interpretation of the code.� It reasoned that the purpose of UCDC 152.009, the
general "similar use" provision, was not to limit otherwise allowed
and generic conditional uses and that the particular "similar use"
allowance in the TC zone controlled over that general provision at UCDC
152.009:

"The Board finds that UCDC �152.009 does not require
the opponents' desired result.� First, the language of the code section allows
a more reasonable and less restrictive interpretation. * * * This section
provides a general permissive grant of authority to allow a particular use in a
zone, even if that use was not expressly listed by the code.� The purpose of
this provision is to provide the County with flexibility to allow uses that were
not expressly enumerated, so long as they are found to be similar to other
listed uses.� This section should not be read to require that such similar uses
may never be allowed (as through the application of UCDC �152.277(E)),
if the use is listed in another zoning district.� In other words, the
Board does not interpret the phrase 'a use not listed in this chapter' to
create a limitation, but rather to expand the universe of uses that could be
allowed (and in fact, are allowed by UCDC �152.277(E)). * * *

"Second, the Board [concludes] * * * that the more
specific language of UCDC �152.227(E) must be read to control over the general
language of UCDC �152.009.� UCDC �152.277(E) is very specific to uses in the TC
zone, and allows 'other uses similar to the uses permitted or the conditional
uses normally located in a Tourist Commercial Zone, providing that it has the
approval of the Planning Commission.'� On the other hand, UCDC �152.009 is
located in the 'General Provisions' section of UCDC Chapter 152, and applies
generally to uses that could be allowed in any zoning district.� It is
well-established that general local ordinance provisions are controlled by more
specific provisions."

(Emphasis in original.)

Petitioners appealed the conditional
use permit approval to LUBA.� They raised six assignments of error, one of
which was that the county erred in allowing truck stop uses in the TC zone as
similar uses under UCDC 152.277(E), because those uses were precluded by UCDC
152.009 and were otherwise allowed by UCDC 152.262.� LUBA sustained two
unrelated assignments of error and remanded the permit to the county for
further action.� The board denied petitioners' claim of error on the county's
allowance of the truck-related uses as conditional uses in the TC zone,
concluding:

"LUBA must affirm a governing body's interpretation of
local code provisions that are consistent with the express language, purpose or
underlying policy.� ORS 197.829(1); Church v. Grant County, 187 Or App
518, 69 P3d 759 (2003).� Petitioners' preferred interpretation subsumes UCDC
152.277(E) into the general similar use provision at UCDC 152.009, and gives
the specific provision no independent role or meaning.� The county's
interpretation gives meaning to both provisions, and is therefore more
consistent with the terms of both provisions.� Certainly, we cannot say that
the [county's] interpretation is inconsistent with the express language,
purpose or underlying policy.� Accordingly, we affirm that interpretation.� ORS
197.829(1)."

On review, petitioners claim that
LUBA erred in sustaining the county's interpretation of UCDC 152.277(E) as
allowing a conditional use that is otherwise precluded by UCDC 152.009 and that
is implicitly only allowed as a "truck stop" use in the CRC zone.�
Petitioners also claim that LUBA erred in affirming a condition of approval
that required future monetary contribution to an intersection improvement
project, rather than immediate construction of that improvement.� We reject
without further discussion petitioner's second claim and affirm the board's
deference to the county's interpretation of its ordinances under ORS 197.829.

We begin with the standard of review
under that statute.� ORS 197.829(1) states rules of deference by LUBA to a
local government's interpretation of its land use policies.� ORS 197.829(1)
provides:

"The Land Use Board of Appeals shall affirm
a local government's interpretation of its comprehensive plan and land use
regulations, unless the board determines that the local government's interpretation:

"(a) �Is inconsistent with the express
language of the comprehensive plan or land use regulation;

"(b) �Is inconsistent with the purpose for
the comprehensive plan or land use regulation;

"(c) �Is inconsistent with the underlying
policy that provides the basis for the comprehensive plan or land use
regulation; or

"(d) �Is contrary to a state statute, land
use goal or rule that the comprehensive plan or land use regulation
implements."

Thus, under ORS 197.829, the rules of deference parallel
some, but not all, rules of construction used in determining the meaning of an
ordinance.� Under the statute, if deference is owed to the locality's
interpretation of its plan or regulation, then that interpretation must be
affirmed.� If deference is not owed, LUBA can reverse that interpretation if it
is inconsistent with the legislative intent in enacting the provision as
revealed by the application of rules of statutory construction.��

We review LUBA's application of ORS
197.829 to determine whether that analysis is "unlawful in
substance."� ORS 197.850(9)(a).� In this case, petitioners challenge
LUBA's opinion and order on the ground that LUBA erred in deferring to the
county's interpretations of its code that were "inconsistent with the express
language" of the code under ORS 197.829(1)(a).� Petitioners do not contend
that the county's constructions of its code were inconsistent with the purposes
or underlying policies of the relevant land use regulations or that they were
contrary to the governing policies implemented by those regulations.� ORS
197.829(1)(b), (c), and (d).

Whether a local government's
interpretation of its comprehensive plan or land use regulation is
"inconsistent with the express language" of the plan or regulation
under ORS 197.829(1)(a) "depends on whether the interpretation is
plausible, given the interpretive principles that ordinarily apply to the
construction of ordinances under the rules of PGE [v. Bureau of Labor
and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993)]."� Foland
v. Jackson County, 215 Or App 157, 164, 168 P3d 1238, rev den, 343
Or 690 (2007).� Put another way, the "consistency with the express
language" inquiry looks at the text of the plan provision or the
regulation in question, as well as the context of other parts of the plan or
regulation that are relevant to the textual meaning of that "express
language."�

Thus, the reference in ORS 197.829(1)
to "express language" requires the application of constructional
rules related to the text of an ordinance.� Therefore, in determining whether a
local government's interpretation of its land use plan or regulation is
"inconsistent with the express language of the comprehensive plan or land
use regulation" under ORS 197.829(1)(a), we apply the statutory construction
principles in ORS 174.010 and ORS 174.020(2) that are based on the
"express language" of a provision.(2)� Although those statutes
are written to pertain to "the construction of a statute," we use
them as well in the interpretation of local ordinances.� Ramirez v. Hawaii T
& S Enterprises, Inc., 179 Or App 416, 425, 39 P3d 931 (2002).� We also
apply other textual canons of construction in evaluating a local government's
interpretation of its plan or regulation under ORS 197.829(1)(a).� Those canons
include some rules applied in "first level" PGE analysis, such
as giving words of common usage their "plain, natural, and ordinary
meaning" and recognizing that "use of the same term throughout a
statute indicates that the term has the same meaning throughout the
statute."� PGE, 317 Or at 611.(3)

On review, petitioners contend that
LUBA erred in applying ORS 197.829 to the county's interpretation of UCDC
152.277(E).� Petitioners reiterate their contention that application of UCDC
15.277(E), the "similar use" provision in the TC zoning district, to
allow truck-related uses sufficient to comprise a "truck stop" in the
TC zone is "inconsistent with the express language" of the
development code.� They reason that the express text of UCDC 152.262(H) allows
a "truck stop or trucking terminal" as a conditional use in the CRC
zone and that the express allowance of a "truck stop" use in one
zoning district implies that any combination of uses that is a "truck
stop" use is precluded in all other zoning districts, including the TC
zoning district.� Petitioners further argue that the specific limitations on
permissible "similar uses" in UCDC 152.009 (to allow only those uses
"not listed in this chapter") apply to the similar uses countenanced
by UCDC 152.277(E).� Therefore, petitioners conclude that the county's interpretation
of UCDC 152.277(E) is not entitled to deference under ORS 192.529(1)(a) and
should be overturned.� Petitioners additionally claim, without any reference to
any relevant portion of ORS 197.829, that the county's interpretation of UCDC
152.277(E) is not subject to deference because it is inconsistent with a ruling
of the Land Conservation and Development Commission (LCDC) on the county's land
use ordinances.

Petitioners do not dispute the
county's interpretation of the text of UCDC 152.277(E) as permitting components
of truck stop uses in the TC zone, that is, that those truck-related uses are
"similar to" the "automobile service station" permitted use
in the TC zoning district.� Instead, petitioners contend that UCC 152.277(E) is
limited by the operation of UCDC 152.262(H), the code provision that allows a
"truck stop or trucking terminal" as a conditional use in the CRC
zoning district.� In essence, petitioners argue that both provisions
regulate the uses allowed in the TC zoning district, that UCDC 152.262(H) by
negative implication precludes trucks stops except in the CRC zone, and that
the implicit preclusion of truck stops under UCDC 152.262(H) controls over any
express allowance of that use by UCDC 152.277(E).� The county interpreted UCDC
152.262(H) to not have that implied effect.� Thus, the question becomes whether
the county's interpretation of UCDC 152.262(H) is entitled to deference under
ORS 197.829, i.e., whether the county's interpretation of UCDC
152.262(H) is inconsistent with its "express language" under ORS
197.829(1)(a).

The "express language" of
UCDC 152.262(H) permits "truck stops and truck terminals" as a
conditional use in the CRC zoning district; it says nothing about truck stops
anywhere else.� If there is a negative implication by that allowance, it comes
from some place other than the "express language" of UCDC
152.262(H).� It could be that the county describes each of its allowed land
uses in the development code by particular and exclusive wording, so that an
inference could be drawn that the meanings of two described uses do not
overlap.� Even if that inference could be drawn from the structure of the code
as a whole, it is not compelled by the "express language of the * * * land
use regulation," i.e., the text of UCDC 152.262(H) and other
expressly applicable provisions.(4)

In sum, petitioners' application of
ORS 197.829(1)(a) to avoid deference to the county's interpretation of UCDC
152.262(H) and UCDC 152.277(E) fails because it relies on a rule of permissible
inference as to the meaning of an ordinance and not on the express language of
the enactment itself. �It is only that "express language" of the
provisions that is relevant in applying the rule of deference stated in ORS
197.829(1)(a).� We conclude that the county's interpretation of UCDC 152.262(H)
to regulate only the allowance of truck stops in the CRC zoning district, and
not to preclude that use elsewhere, is not "inconsistent with the express
language" of UCDC 152.262(H). �Because the county's interpretation of UCDC
152.262(H) is consistent with its wording, that interpretation is entitled to
deference under ORS 197.829(1)(a).� Thus, LUBA did not err in affirming the
county's application of UCDC 152.262(H) and UCDC 152.277(E) to allow the truck
stop uses.�

Petitioners next contend that LUBA
erred in affirming the county's interpretation of UCDC 152.009 to not limit the
type of conditional uses that can be allowed by UCDC 152.277(E).� Again,
petitioners do not claim that the county's interpretation of UCDC 152.009 is
inconsistent with the apparent purpose or underlying policy of the law or
contrary to an enactment that is implemented by UCDC 152.009.� ORS
197.829(1)(b) - (d).� Rather, they suggest that the "express
language" of UCDC 152.009 states the exclusive means for allowing
conditional uses that are not identified specifically in the development code.�

We agree with LUBA that the county's
interpretation of UCDC 152.009 is consistent with its text and apparent
purpose.� The county concluded that "the purpose of [UCDC 152.009] is to
provide the County with flexibility to allow uses that were not expressly
enumerated * * * [and not] to require that such similar uses may never
be allowed (as through the operation of UCDC �152.227(E)), if the use is
listed in another zoning district." �(Emphasis in original.)� Reading UCDC
152.009 to state the exclusive means for locating "similar uses"
renders UCDC 152.277(E) surplusage.� ORS 174.010 dictates that, "where
there are several provisions or particulars such construction is, if possible,
to be adopted as will give effect to all."� Thus, the county correctly
read UCDC 152.009 to state the policy for locating uses not otherwise listed in
the code, and UCDC 152.277(E) to apply in different circumstances, i.e.,
to set out conditional use allowances in the TC zoning district without regard
to whether the use is listed elsewhere.� That construction gives independent
effect to each provision and is more consistent with the "express
language" of each provision under ORS 197.829(1).� Because we read the
provisions to be consistent with each other, there is no need to apply ORS
174.020(2) ("When a general and particular provision are inconsistent, the
latter is paramount to the former so that a particular intent controls a general
intent that is inconsistent with the particular intent.").

Petitioners finally contend that the
county's interpretation of UCDC 152.277(E) to allow truck stops in the TC
zoning district is inconsistent with a periodic review order issued by LCDC or
a periodic review report issued by DLCD.� Petitioners do not explain how the
order or policy illustrates the "purpose" or the "underlying
policy" of the regulation or how UCDC 152.277(E) implements the order or
report under ORS 197.829(1).� We reject that contention without discussion.�

We conclude that LUBA did not err
under ORS 197.829(1) in deferring to the county's interpretation of its
development code provisions.

Affirmed.

1.Generally
speaking, the county land use regulations in effect at the time of an
application for a land use permit apply to the permit.� ORS 215.427(3)(a).� The
referenced county ordinances are those in effect on November 10, 2005, the date
of the application for the conditional use permit.�

"In the construction of a statute, the
office of the judge is simply to ascertain and declare what is, in terms or in
substance, contained therein, not to insert what has been omitted, or to omit
what has been inserted; and where there are several provisions or particulars
such construction is, if possible, to be adopted as will give effect to
all."

ORS 174.020(2) provides that, in the construction of a
statute, "[w]hen a general and particular provision are inconsistent, the
latter is paramount to the former so that a particular intent controls a
general intent that is inconsistent with the particular intent."

3.On the other
hand, the legislative intent in enacting a land use policy, as shown in its
legislative history, is not pertinent to the "express language"
factor under ORS 197.829(1)(a).� That legislative history, however, may be
relevant in identifying the "purpose" or "underlying
policy" of the measure, or the "state statute, land use goal or rule
that the comprehensive plan provision or land use regulation implements"
under the remaining ORS 197.829 factors.�

4.Petitioners
argue that such an inference was drawn in Clatsop County v. Morgan, 19
Or App 173, 178-79, 526 P2d 1393 (1974).� We disagree.� In Clatsop County,
we held that the failure to list a particular use as a permitted or conditional
use in a zoning district provision meant that the use was not allowed in that
district, particularly when that use was listed as an allowed use elsewhere.�
In that case, the landowners sought to construct a commercial amusement
establishment on their property that was zoned A-1 (Agricultural and
Forestry).� The applicable zoning ordinance did not list amusement parks as an
allowed or conditional use in the A-1 zone; instead, the use was allowed as a
conditional use in the commercial zoning districts.� We concluded that
"the drafters intended to restrict commercial amusement establishments to
commercial (C-1, C-2) zones" because by "expressly assigning
amusement park activities to commercial zones, the legislative body has
restricted such activities to commercial zones only, and by necessary inference
has expressed an intent that similar activities not be carried on in any other
zone."� 19 Or App at 178-79.� Clatsop County did not involve
construing the meaning of a listed use in a zoning ordinance to avoid
overlapping allowed uses among the various zoning districts, the statutory
construction principle advanced by petitioners.� Clatsop County
determined only that a zoning use is allowed in the district in which it is
listed and not in a district in which it is not listed.� We rejected the
argument that zoning ordinances implicitly preclude overlapping allowed uses
among the zoning districts in Sarti v. City of Lake Oswego, 106 Or App
594, 809 P2d 701 (1991).